Page No.# 1/33 vs The State Of Assam And 4 Ors
2025 Latest Caselaw 7167 Gua

Gauhati High Court

Page No.# 1/33 vs The State Of Assam And 4 Ors on 10 September, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                       Page No.# 1/33

GAHC010276142023




                                                                 2025:GAU-AS:12332

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : WP(C)/7112/2023

            JAYANTA BORAH
            SON OF LATE KANDOW BORAH, RESIDENT OF SANKAR NAGAR, W/NO- 6,
            P.O. AND P.S. UDALGURI, IN THE DISTRICT OF UDALGURI, ASSAM, PIN-
            784509



            VERSUS

            THE STATE OF ASSAM AND 4 ORS
            REPRESENTED BY THE COMMISSIONER AND SECRETARY, GOVT. OF
            ASSAM JUDICIAL DEPARTMENT

            2:GAUHATI HIGH COURT
             REPRESENTED BY REGISTRAR GENERAL

            3:DISTRICT AND SESSIONS JUDGE
             UDALGURI

            4:CHIEF JUDICIAL MAGISTRATE
             UDALGURI CHAIRMAN OF THE SELECTION COMMITTEE

            5:ANANDA BRAHMA
             SON OF LATE SURENDRA BRAHMA
             AT PRESENT WORKING AS HEAD ASSISTANT IN THE OFFICE OF CHIEF
            JUDICIAL MAGISTRATE
             UDALGURI
             PO- UDALGUR

Advocate for the Petitioner   : MR. K SARMA, MR. S BORUAH

Advocate for the Respondent : GA, ASSAM, MR R CHETRY(R-5),MR P SHARMAH (R-5),SC,
GHC
                                                 Page No.# 2/33




Linked Case : WP(C)/662/2025

SRI UDDIPAK KUMAR GOGOI
SON OF LATE SOMESWAR GOGOI
RESIDENT - OF VILLAGE- RANGCHALI
P.O. AND P
S.- BORHOOLA
JORHAT
ASSAM
PIN- 785631


VERSUS

THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE LEGAL REMEMBRANCER CUM SECRETARY
TO THE GOVERNMENT OF ASSAM
JUDICIAL DEPAFTMENT
ASSAM SECRETARIATE
GUWAHATI
ASSAM
PIN-781001.

2:THE GAUHATI HIGH COURT
REPRESENTED BY REGISTRAR GENERAL
 GUWAHATI

3:THE REGISTRAR GENERAL
GAUHATI HIGH COURT
GUWAHATI

4:THE REGISTRAR (VIGILANCE)
GAUHATI HIGH COURT
GUWAHATI

5:THE DISTRICT AND SESSION JUDGE
UDALGURI
P.O AND P.S.- UDALGURI
DIST- UDALGURI
ASSAM
PIN-784509

6:THE SELECTION COMMITTEE
FOR THE POST HEAD ASSISTANT
                                                                                  Page No.# 3/33

             REPRESENTED BY DISTRICT AND SESSION JUDGE
             UDALGURI
             DIST.- UDALGURI
             ASSAM

              7:SRI SORUJ KR SUTRADHAR
             TANGLA
              HOSPITAL ROAD
             WARD NO
             3
              UDALGURI
              ------------

For the Petitioner(s) : Mr. K. Sarma, Advocate : Mr. A. Bhattacharyya, Advocate : Mr. A. I. Kathar, Advocate

For the Respondent(s) : Mr. H. K. Das, Standing Counsel : Mr. P. Sarma, Advocate : Mr. M. K. Sarma, Advocate

Date of Hearing : 07.08.2025 Date of Judgment : 10.09.2025

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT AND ORDER (CAV)

The issue involved in both the writ petitions is on the question as to whether the post of Accountant which was created in the three Districts i.e. Baksa, Chirang and Udalguri would be a feeder post to the post of Head Assistant.

2. Heard Mr. K. Sarma, the learned counsel appearing on behalf of the Petitioner in WP(C) No.7112/2023 and Mr. A. Bhattacharyya, the learned counsel appearing on behalf of the Petitioner in WP(C) No.662/2025. I have Page No.# 4/33

also heard Mr. D. Nath, the learned Senior Government Advocate appearing on behalf of the State of Assam and Mr. H. K. Das, the learned Standing counsel appearing on behalf of the Gauhati High Court.

FACTUAL MATRIX:

WP(C) No.7112/2023:

3. The Petitioner herein was appointed as a Lower Division Assistant in the establishment of Chief Judicial Magistrate, Darrang, Mangaldai vide an order dated 16.07.1997. Upon the creation of the Udalguri Judicial District, the Petitioner was transferred to Udalguri vide an order dated 26.02.1999. It is relevant to take note of that on 31.03.2007, the State of Assam through the Deputy L.R. and Deputy Secretary to the Government of Assam, Judicial Department had issued a communication to the to the Accountant General (A&E), Assam in respect to creation of post for the District and Sessions Judge Courts and Chief Judicial Magistrate Courts in three newly created Districts namely Udalguri, Chirang and Baksa. In the said newly created three Districts namely Udalguri, Chirang and Baksa, three posts of Accountant were created in the District and Sessions Judge Establishment and three posts of Accountant were created in the Chief Judicial Magistrate Establishment in the three Courts in the District of Udalguri, Chirang and Baksa.

4. It is relevant to take note of at this stage that the Assam District and Sessions Judges Establishment (Ministerial) Service Rules, 1987 (for short, 'the District and Sessions Judges Rules') as well as the Assam Chief Judicial Page No.# 5/33

Magistrates Establishment (Ministerial) Service Rules, 1987 (for short 'the Chief Judicial Magistrate Service Rules') did not have the post of Accountant within its cadre. During the course of hearing, it was brought to the attention of this Court that the post of the Accountant had only been created in the three districts of Udalguri, Chirang and Baksa.

5. In the year 2012, after the creation of post of Accountant in the establishment of the Chief Judicial Magistrate, Udalguri, the Petitioner was promoted to the post of Accountant vide an order dated 17.03.2012. A further perusal of the order dated 17.03.2012 shows that the Petitioner along with one Shri Bhupendra Nath Baruah who were both the senior most Lower Division Assistant were promoted to the post of the Accountant as well as the Upper Division Assistant respectively. On 27.02.2023, the Office of the Chief Judicial Magistrate, Udalguri had issued an advertisement. In the said advertisement, the eligibility criteria set out was that the candidates must have experience as Upper Division Assistant with at least 10 (ten) years of service as such to their credit including Supervisory Assistants in any Chief Judicial Magistrate Establishment of Assam as on 27.02.2023.

6. Pursuant to the said advertisement, two candidates submitted their application. One candidate was the Petitioner and the other candidate was the Respondent No.5. As both the candidates were not found eligible due to non-fulfillment of the eligibility criteria, a notification was issued dated 14.06.2023 intimating all concerned. Subsequent thereto, another advertisement was issued on 16.09.2023 whereby the eligibility criteria of 10 years as mentioned in the advertisement dated 27.02.2023 was reduced to Page No.# 6/33

at least 5 years. In pursuance to the said advertisement dated 27.02.2023, the Respondent No.5 was appointed to the post of Head Assistant under the establishment of the Chief Judicial Magistrate, Udalguri. The Petitioner herein who was senior to the Respondent No.5 insofar as having joined the post of Accountant on 17.03.2012 whereas the respondent No.5 having joined on 03.07.2018 to the Post of Upper Division Assistant, being aggrieved, has approached this Court by filing the present writ petition.

7. At this stage, it is also pertinent to mention that pursuant to the first advertisement so issued on 27.02.2023, the Chief Judicial Magistrate, Udalguri has sought for clarification from the Gauhati High Court on the Administrative Side as to whether the post of the Accountant could be considered as a feeder post to the post of the Head Assistant. The Gauhati High Court on the Administrative Side vide a communication dated 29.09.2023 through the Registrar (Vigilance) intimated the Chief Judicial Magistrate, Udalguri as well as the Petitioner to consider the matter as per the Rules which would be the Chief Judicial Magistrate Rules.

8. The record reveals that pursuant to the filing of the instant writ petition, this Court vide an order dated 13.12.2023 issued notice and further observed that the order of promotion dated 23.11.2023 whereby the Respondent No.5 has been promoted to the post of Head Assistant shall be subject to further orders and/or outcome of the writ petition.

9. From the materials on record, it further transpires that the Respondent Nos. 2, 3 and 4 filed an affidavit-in-opposition. In the said affidavit-in- Page No.# 7/33

opposition, the reasons why the eligibility criteria was reduced from 10 to 5 years have been stated to be done so by invoking Rule 17 of the Chief Judicial Magistrate Rules. It was further mentioned that there can be no equivalence of the post of Accountant and Lower Division Assistant. It was also stated that there was no circular or notification issued by the Government of Assam notifying that the post of Accountant and Upper Division Assistant are equivalent for the purpose of promotion to the post of Head Assistant. Reference was also made to the communication issued by the Registrar (Vigilance) of this Court dated 29.09.2023 whereby the Respondent No.4 was directed to consider the matter as per the Chief Judicial Magistrate Rules. It was also mentioned that the Respondent No.5 was selected by the Selection Board and subsequently appointed vide an order dated 23.11.2023 with the approval of the District and Sessions Judge, Udalguri vide approval letter dated 22.11.2023.

10. The Respondent No.5 had also filed an affidavit-in-opposition wherein the stand so taken was similar to the stand taken by the official Respondents to the effect that the post of Accountant cannot be a feeder post to the post of Head Assistant in view of Rule 6(1) of the Chief Judicial Magistrate Rules.

11. At this stage, it is very pertinent to mention that taking into account that there was no clarity on the issue as to whether the post of Accountant would be the feeder post to the post of Head Assistant coupled with the fact that vide a notification dated 30.05.2024, the Government of Assam had made certain amendments in the Schedule to the Assam Services (ROP) Rules, 2017 whereby amongst others, the post of Supervisory Assistant, Page No.# 8/33

Accountant, Nazir, Upper Division Assistant as well as Record Keeper were brought within the same pay scale with equivalent grade pay, this Court vide an order dated 20.03.2025 enquired with the State of Assam as to whether the post of Accountant can be equated with the post of Upper Division Assistant or is it a separate post altogether and thereby fixed the writ petition for hearing on 24.04.2025. On the said date i.e. on 24.04.2025, an instruction was placed from the Joint L.R. and Joint Secretary to the Government of Assam, Judicial Department dated 24.04.2025 stating inter alia that as per the notification dated 30.05.2024 issued by the Finance (PRU) Department, it shows that the pay scale of the Accountant is equivalent to Upper Division Assistant which is P.B.-2, Rs.14,000/- - Rs.70,000/- with Grade Pay Rs.8,000/-. The said clarification so given however did not appear to answer the query which this Court sought from the State of Assam vide the order dated 20.03.2025. Accordingly, vide an order dated 01.05.2025, this Court directed the Judicial Department of the Government of Assam to bring on record their stand by filing an affidavit. Paragraph No.3 of the said order dated 01.05.2025 passed by this Court being relevant is reproduced herein under:

"3. The said instruction so produced mentioned that the pay scale of the Accountant and the Upper Division Assistant (UDA) are the same, but do not specifically address the issue. Under such circumstances, this Court has put a specific query upon Mr. D. Nath that, if the pay scale is considered to be the factor, then for the post of Head Assistant, the feeder cadre would be the Supervisory Assistant, Accountant, Nazir, Upper Division Assistant as well as the Record Keeper, all of which posts have the same pay scale and grade pay. Mr. D. Nath submits that he will obtain instructions and file the affidavit on the next date, without fail."

Page No.# 9/33

12. On 29.05.2025, when the present writ petition was again taken up, no affidavit was filed on behalf of the Judicial Department of the Government of Assam but another instruction dated 28.05.2025 was placed issued by the Joint L.R. and Joint Secretary to the Government of Assam, Judicial Department wherein it was reiterated that the post of Accountant is to be treated equivalent to that of the Upper Division Assistant as the pay scale is same with Supervisory Assistant, Accountant, Nazir and Record Keeper. The relevant portion of the said instruction dated 28.05.2025 being relevant is reproduced herein under:

"In the present case, from the initial proposal of the Registry itself, the post of Accountant (UDA) were proposed for creation for the establishment of D&SJ but for the establishment of CJM, it was simply proposed as "Accountant". However, while according concurrence by the Finance department, the posts had been mentioned as "Accountant" and accordingly posts were created by us showing the post as Accountant only. Noticeably, in the proposal, there was no mention of any pay scale and from the financial implication furnished along-with the proposal being a consolidated one covering all categories posts created together (158 nos), it is difficult to ascertain the pay scale of the posts of accountants.

Under such circumstances and considering the original proposal of the Registrar General, Gauhati High Court in respect of the establishment of District & Sessions Judge, we may clarify that the post of accountant is to be treated equivalent to that of UDA, as the pay scale is same with Supervisory Assistant, Nazir, UDA and Record Keeper.

But, there is no post of accountant exist as per Assam District & Sessions Judge Establishment (Ministerial) Service Rules, 1987 as well as in the Assam Chief Judicial Magistrate Establishment (Ministerial) Service Rules, 1987.

Page No.# 10/33

From the contents of the writ petition also it is reflected that for the post of Accountant, the candidates are selected on the basis of senior LDA in the newly created posts and draws salary on the pay scale as per ROP, 2017 i.e. Rs.14000 - Rs.49000 + GP Rs.8000), which is equivalent to the post of UDA.

Therefore, in view of above, the post of Accountant can be treated as equivalent to UDA."

13. This Court taking into account the above stand so taken in the instructions dated 28.05.2025 directed the State of Assam to file an affidavit in that regard. This Court vide the order dated 28.05.2025 also observed that in view of the powers conferred upon the Gauhati High Court under Article 235 of the Constitution over the District Judiciary, the Gauhati High Court on the Administrative Side was also required to place a clear picture by way of affidavit as to whether the post of the Accountant would be equivalent to the post of Upper Division Assistant for the purpose of promotion to the post of Head Assistant. The Judicial Department of the Government of Assam filed an affidavit on 12.06.2025. The stand so taken by the Judicial Department of the Government of Assam in the affidavit so filed on 12.06.2025 and more particularly delineated at Paragraph No.4 is reproduced herein under:

"4. That the deponent begs to state that as per Rule 6(2) of the Assam District & Sessions Judges establishment (Ministerial) Service Rule, 1987, the selection to the post of Head Assistant is made from amongst the persons who must have served as supervisory Assistant or a Sheristadar of Munsiff or a Sheristadar of Asstt. District & Sessions Judge or Upper Division Assistant continuously for 3 years in the District & Sessions Judges Establishment.

Page No.# 11/33

The deponent further states that on the other hand as per Rule 6(1) of the Assam Chief Judicial Magistrate Establishment (Ministerial) Service Rule, 1987 the selection to the post of Head Assistant is made from amongst the Upper Division Assistants with at least 10 (ten) years of service as such to their credit including Supervisory Assistants in any Chief Judicial Magistrates Establishment (ministerial).

The deponent states that in the present case, from the initial proposal of the Registry itself, the post of Accountant (UDA) were proposed to creation for the establishment of D&SJ but for the establishment of CJM, it was simply proposed as "Accountant". However, while according concurrence by the Finance department, the posts had been mentioned as "Accountant" and accordingly posts were created by us showing the post as Accountant only. Noticeably, in the proposal, there was no mention of any pay scale and from the financial implication furnished along with the proposal being a consolidated one covering all categories posts created together (158 nos.), it is difficult to ascertain the pay scale of the posts of accountants.

Under such circumstances and considering the original proposal of the Registrar General, Gauhati High Court in respect of the establishment of District & Sessions Judge, we may clarify that the post of accountant is to be treated equivalent to that of UDA, as pay scale is same with Supervisory Assistant, Nazir, UDA and Record Keeper.

But, the deponent further states that there is no post of accountant exist as per Assam District & Sessions Judges establishment (Ministerial) Service Rule, 1987 as well as in the Assam Chief Judicial Magistrate Establishment (ministerial) Service Rule, 1987.

The deponent further states that also from the contents of the writ petition Page No.# 12/33

it is reflected that for the post of Accountant, the candidates are selected on the basis of senior LDA in the newly created posts and draws salary on the pay scale as per ROP, 2017 i.e (Rs. 14,000 -- Rs. 49,000 + GP Rs. 8,000), which is equivalent to the post of UDA. Therefore, the post of Accountant can be treated as equivalent to UDA.

The deponent further clarifies that since no records is available with the office of the deponent as regards the pay scale being extended to accountant by the office of the CJM/ D&SJ concerned before issuance of this Department's

notification dated 30th May, 2024, therefore, it would be difficult on part of the deponent to clarify the point with precision, in the attending facts and circumstances of the case."

14. From the above quoted paragraph, it would be seen that the stand so taken by the Respondent-State of Assam is clear and unequivocal that the post of Accountant would be equivalent to the post of Upper Division Assistant. However, the question arises as to whether basing on equivalence of the posts, would the post of Accountant be a feeder post to the post of Head Assistant. This Court gave opportunities to the Gauhati High Court on the Administrative Side to file an affidavit clarifying the said aspect but for one reason or the other, the said affidavit was not filed. On an enquiry being made by this Court on 26.06.2025 when the instant writ petition was taken up, the Standing counsel for the Gauhati High Court submitted that the affidavit could not be filed as the matter has been placed by the Hon'ble Chief Justice before the Rule Making Committee for a decision in the matter. Under such circumstances, it therefore appears that the Gauhati High Court on the Administrative Side have not taken any decision as to whether the post of Accountant would be the feeder post to the post of Head Assistant.

Page No.# 13/33

This aspect is relevant taking into account that the Respondent No.4 in the instant proceedings had acted upon the communication issued by the Registrar (Vigilance) dated 29.09.2023 whereby the Respondent No.4 was directed to take steps as per the Rules.

WP(C) No.662/2025:

15. The present case is totally opposite to the case of the Petitioner in WP(C) No.7112/2023. The present case is in respect to the District and Sessions Judge Establishment at Udalguri. From the facts narrated in the present petition, it would be seen that the Petitioner herein initially joined as Copyist in the Court of the Special Judge, (Additional Court No.1), CBI, Chandmari, Guwahati vide an order dated 01.03.2014. On 01.02.2020, the Petitioner was appointed as an Upper Division Assistant in the Court of the District and Sessions Judge, Karbi Anglong, Diphu. On 29.08.2023, the Petitioner was appointed as Sheristadar in the Office of the Civil Judge and Assistant Sessions Judge, Karbi Anglong by the District and Sessions Judge, West Karbi Anglong, Hamren against the vacant post. The post of the Sheristadar was re-designated as Administrative Officer vide a notification issued by the Government of Assam dated 16.09.2024 and on the basis of the said notification, the Petitioner has since been serving as Administrative Officer in the Office of the District and Sessions Judge, West Karbi Anglong, Hamren. On 02.11.2024, an advertisement was published by the District and Sessions Judge, Udalguri for filling up the post of Head Assistant, (newly designated as Head Administrative Officer) in the establishment of District and Sessions Judge, Udalguri. The eligibility criteria stipulated in the said Page No.# 14/33

advertisement was that the candidate must have served as the Supervisory Assistant or a Sheristadar of the Munsiff or a Sheristadar of Assistant District and Sessions Judge or Upper Division Assistant continuously for 3 years in

the District and Sessions Judge establishment as on 1 st day of November, 2024 as per the District and Sessions Judges' Rules.

16. The Petitioner applied for the said post through proper channel by submitting his application. On 27.11.2024, a notification was issued by the Office of the District and Sessions Judge, Udalguri publishing a list of 6 (six) eligible candidates including the Petitioner for interview for the post of Head Assistant/Head Administrative Officer. Subsequent thereto, vide another notification dated 27.11.2024, the District and Sessions Judge, Udalguri published a list of three candidates whose candidature were rejected due to reasons mentioned therein.

17. On 19.12.2024, the Petitioner appeared in the interview for the post of Head Assistant/Head Administrative Officer. On the same date, the list of the selected candidate was published wherein the Respondent No.7 was shown as selected and the name of the Petitioner was in the waiting list. Along with the select list, a consolidated mark sheet was also published and the Respondent No.7 was directed to join within 15 days from the date of the said notification. The Petitioner made enquiry and came to learn that the selected candidate did not have the eligibility criteria as per the advertisement inasmuch as the selected candidate was working as an Accountant in the establishment of District and Sessions Judge, Udalguri. It is under such circumstances, the present writ petition was filed.

Page No.# 15/33

18. The writ petition upon being filed, this Court issued notice and further observed that if any appointment is made pursuant to the notification dated 19.12.2024, the same shall be subject to the outcome of the writ petition.

19. The record reveals that the official Respondents did not file any counter. However, the Respondent No.7 had filed an affidavit-in-opposition. In the said affidavit-in-opposition, it was mentioned that the Respondent No.7 vide an order dated 07.03.2014 was appointed against Grade-II vacant post (LDA-cum-Typist) in the establishment of District and Sessions Judge, Udalguri and he joined service on 13.03.2014 in the post of LDA-cum-Typist. The Respondent No.7 thereupon vide an order dated 24.01.2020 was promoted to the post of Accountant. Subsequent thereto, vide an order dated 26.05.2020, the Respondent No.7 was transferred within the said establishment as Bench Assistant in the Court of the Assistant District and Sessions Judge, Udalguri.

20. Further to that, on 28.03.2022, the Respondent No.7 was transferred to the Court of the Assistant District and Sessions Judge as Bench Assistant. The District and Sessions Judge, Udalguri vide an order dated 21.02.2024 transferred the Respondent No.7 to the Accounts Branch from the position the Respondent No.7 was holding as Bench Assistant. It has also been brought on record that vide an order dated 20.12.2024, the Respondent No.7 have been appointed as Head Assistant/Head Administrative Officer under the establishment.

21. A reply was filed by the Petitioner whereby it was mentioned that the Page No.# 16/33

post of Accountant cannot be made equivalent to the post of Upper Division Assistant on the basis of the communication issued by the Registrar (Vigilance) dated 29.09.2023 in the case of the Petitioner in WP(C) No.7112/2023 the reference of which this Court has made in detail earlier that the post of Head Assistant has to be filled up as per the Rules. It was further the case of the Petitioner in the affidavit-in-reply that the Respondent No.7 could not have been considered for promotion to the post of Head Assistant as he was holding the post of Accountant.

22. This Court enquired with Mr. H. K. Das, the learned Standing counsel for the Gauhati High Court as to why no affidavit was filed by the Gauhati High Court or by the Establishment of the District and Sessions Judge, Udalguri. It was submitted that any affidavit so filed would be contrary to the stand taken by the Respondents in WP(C) No.7112/2023.

23. On the other hand, Mr. D. Nath, the learned Senior Government Advocate submitted that the stand of the State would remain the same as was taken in WP(C) No.7112/2023 and as such, the contents of the affidavit filed in the said writ petition be taken as the stand of the State of Assam in the present proceedings.

24. In the backdrop of the above pleadings and the queries so made by this Court, this Court duly heard the learned counsels for the parties whose submissions were in terms with their pleadings and as such, for the sake of brevity, this Court would not like to reiterate the same.

Page No.# 17/33

ANALYSIS AND DETERMINATION:

25. From a perusal of the communication dated 04.11.2015, it appears that 158 numbers of posts were created vide a communication dated 31.03.2007 for the establishment of District and Sessions Judges Court and the Chief Judicial Magistrates Court in the three newly Districts and Sub- Divisions namely Udalguri, Chirang and Baksa. The communication dated 04.11.2015 also shows that all these 158 numbers of posts were permanently retained w.e.f. 01.03.2015. Amongst these posts, three posts of Accountant were created in the establishment of the District and Sessions Judge in the three Courts of Udalguri, Chirang and Baksa and three posts of Accountant were also created in the establishment of Chief Judicial Magistrate in the three Courts of Udalguri, Chirang and Baksa.

26. From the affidavit so filed by the State of Assam in WP(C) No.7112/2023, it is of utmost importance to take note of as to how the posts of Accountant were created. It appears from the said affidavit that an initial proposal was sent by the Registry of Gauhati High Court for creation of the post of Accountant (UDA) in the establishment of District and Sessions Judge but for the establishment of the Chief Judicial Magistrate, it was simply proposed as Accountant. It further appears that while according concurrence by the Finance Department, the posts have been mentioned as Accountant and accordingly, the posts were created by the State of Assam showing the post as Accountant only. It was further mentioned that in the proposal so sent by the Registry of the Gauhati High Court, there was no mention of any pay scale and from the financial implication furnished along with the Page No.# 18/33

proposal being a consolidated one covering all the categories of posts created together (158 numbers), it was difficult to ascertain the pay scale of the post of Accountant. It was further mentioned that taking into account the original proposal of the Registrar General of the Gauhati High Court in respect to the establishment of District and Sessions Judge, it was clarified that the post of Accountant is to be treated equivalent to that of the UDA as the pay scale is same with the Supervisory Assistant, Nazir and Record Keeper. At the same time, it was also mentioned that the post of Accountant does not exist in the District & Sessions Judges Rules and the Chief Judicial Magistrate Rules.

27. It is relevant to take note of that the Petitioner in WP(C) No.7112/2023 was promoted to the post of Accountant being the second senior most Lower Division Assistant vide an order dated 17.03.2012. The senior most Lower Division Assistant was promoted to the post of Upper Division Assistant.

In the case of the respondent No.7 in WP(C) No.662/2025, it appears that the respondent No.7 was initially appointed as LDA-cum-Typist vide an order dated 07.03.2014 by the District and Sessions Judge, Udalguri. The Respondent No.7 thereupon was promoted to the post of Accountant. The various orders enclosed as Annexure-C, D and E to the affidavit-in-opposition filed by the Respondent No.7 in WP(C) No.662/2025 clearly shows that though the Respondent No.7 was appointed to the post of Accountant but the establishment of District and Sessions Judge, Udalguri allotted him work which were manned by both the Upper Division Assistant as well as Lower Division Assistant inasmuch as sometimes the Respondent No.7 was Page No.# 19/33

permitted to discharge the functions of the Bench Assistant and thereafter the Respondent No.7 was transferred with the establishment to another post and he is replaced by a Lower Division Assistant.

28. The materials on record therefore show that the State of Assam in their affidavit have stated that the post of Accountant is equivalent to the post of Upper Division Assistant on the basis of the scale of pay. The establishment of the Chief Judicial Magistrate as well as the District & Sessions Judges establishment have also permitted the person appointed as Accountant to discharge functions which is required to be discharged by the Upper Division Assistant. But the question which arises is whether merely by treating the post of the Accountant as equivalent to the post of Upper Division Assistant as well as allowing the person appointed to the post of Accountant to discharge functions similar to the functions performed by an Upper Division Assistant would suffice to render the post of Accountant as a feeder post to the post of Head Assistant. For that purpose, this Court finds it very pertinent to take note of the District and Sessions Judges Rules as well as the Chief Judicial Magistrate Rules. Both these Rules were notified by separate Notification dated 26.10.1987.

29. Rule 2(3) of the District and Sessions Judges Rules defines the term "District & Sessions Judge Establishment" to mean and include all non- gazetted ministerial staff in the Office of the District & Sessions Judge, Additional District & Sessions Judge, Assistant District & Sessions Judge, Special Judge and Munsiffs of the District. Rule 2(5) of the District and Sessions Judges Rules defines the term "Member of the service" to mean a Page No.# 20/33

member of the Assam District & Sessions Judges Establishment (Ministerial) Service. The term "Service" have been defined in Rule 2(10) to mean the Assam District and Sessions Judges Establishment (Ministerial) Service.

30. Rule 3, 4 and 5 of the District and Sessions Judges Rules are relevant for the purpose of deciding the present dispute. The said Rules are therefore quoted herein under:

"CADRE

3. (1) The Service shall comprise of the following categories of posts -

i. Sheristadar of District & Sessions Judge.

ii. Sheristadar of Additional District & Sessions Judge.

iii. Sheristadar of Assistant District & Sessions Judge.

iv. Head Assistant

v. Supervisory Assistant/Sheristadar of Munsiff/Upper Division Assistant.

vi. Lower Division Assistant.

(2). Each of the categories of posts in Sub-rule (1) shall form an independent Cadre. Members of a lower cadre shall have no claim for appointment to any of the higher cadres except in accordance with the provisions made in these rules.

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4. The status of the members of the service shall be that of Class III - non- gazetted Ministerial Service.

5. The number of posts, permanent as well as temporary under each of the categories mentioned in sub-rule (1) of rule 3 shall be such as may be determined by Government from time to time."

31. From a perusal of the above quoted Rules, it would be seen that in terms with Rule 3(1), it has been categorically mentioned that the service as defined in Rule 2(10) of the District and Sessions Judges Rules shall comprise of the categories of post mentioned in Clauses (i) to (vi). The post of the Accountant however does not find place in the Rule 3(1). Rule 3(2) stipulates that each of the categories of the post as mentioned in Sub-Rule (1) of Rule 3 shall form an independent cadre. It further stipulates that members of a lower cadre shall have no claim for appointment to any of the higher cadres except in accordance with the provisions made in the District and Sessions Judges Rules. In other words, no member of the lower cadre can be appointed to a higher cadre dehors the provision stipulated in the District & Sessions Judges Rules.

32. Rule 5 is of relevance which stipulates that the number of posts, permanent as well as temporary under each of the categories mentioned in Sub-Rule (1) of Rule 3 shall be such as may be determined by Government from time to time. In other words, how many post would form the cadre of each of the categories of post as mentioned in Sub-Rule 3(1) may be determined by the Government from time to time. It is pertinent at this stage to observe that the concept of equivalence of posts is foreign to the Page No.# 22/33

District & Sessions Judges Rules.

33. Rule 6 of the District and Sessions Judges Rules relates to Recruitment. Rule 6(2) deals with recruitment to the post of Head Assistant and Sheristadar of the Additional District & Sessions Judge. The opening words of Rule 6 and Sub-Rule (2) of Rule 6 being relevant are reproduced herein under:

"6. Recruitment to the service shall be made by the appointing authority according to the procedure laid down below -

(1) ......

(2) Head Assistant &Sheristadar of Additional District & Sessions Judge - By selection from amongst the persons who must have served as Supervisory Assistant or a Sheristadar of Munisiff or a Sheristadar of Asstt. District & Sessions Judge or Upper Division Assistant continuously for 3 years in the District & Sessions Judges Establishment."

34. From a perusal of the above quoted portion of Rule 6, it stipulates that the recruitment to the service shall be made by the Appointing Authority according to the procedure laid down therein. Rule 6(2) specifically relates to recruitment to the post of Head Assistant and Sheristadar of Additional District & Sessions Judge. The said Sub-Rule (2) stipulates that the recruitment shall be by way of selection from amongst the persons who must have served as Supervisory Assistant or a Sheristadar of Munisiff or a Sheristadar of Asstt. District & Sessions Judge or Upper Division Assistant continuously for 3 years in the District & Sessions Judges Establishment. The Page No.# 23/33

said Sub-Rule therefore categorically refers to the feeder posts to the post of Head Assistant. The post of Accountant does not find a place within the ambit of Rule 6(2) of the District & Sessions Judges Rules.

35. Now let this Court take into account the Chief Judicial Magistrate Rules. In terms with Rule 2(1), the Appointing Authority in the case of appointment to the post of Head Assistant is the District and Sessions Judge. The said provision is relevant which would be seen when the said provision applied to the facts of the case. Rule 2(4) defines the term "Chief Judicial Magistrates Establishment (Ministerial)" to mean and include all non- gazetted ministerial staff in the Office of the Chief Judicial Magistrate, Additional Chief Judicial Magistrate and Sub-Divisional Judicial Magistrate and Sub-Divisional Judicial Magistrate of the District. Rule 2(6) of the Chief Judicial Magistrate Rules defines "Member of the Service" to mean a member of the Assam Chief Judicial Magistrates Establishment (Ministerial) Service. The term "Service" has been defined in Rule 2(9) to mean the Assam Chief Judicial Magistrates Establishment (Ministerial) Service.

36. Rule 3, 4 and 5 of the Chief Judicial Magistrate Rules is under the heading "Cadre" and the said Rules being relevant are reproduced herein under:

"CADRE

3. (1) The Service shall comprise of the following categories of posts-

(i) Head Assistant Page No.# 24/33

(ii) Supervisory Assistant

(iii) Upper Division Assistant

(iv) Lower Division Assistant

(2) Each of the categories of posts in Sub-rule (1) shall form an independent cadre.

Members of a lower cadre shall have no claim for appointment to any of the higher cadres except in accordance with the provisions made in these rules.

4. The status of the members of the service shall be that III-non-gazetted Ministerial Service.

5. The member of posts, permanent as well as temporary, under each of the categories mentioned in sub-rule (1) of rule 3 shall be such as may be determined by the Government from time to time."

37. From a perusal of the above quoted Rules, it would be seen that Rule 3(1) categorically stipulates that the service as defined in Rule 2(9) shall comprise of categories of posts as mentioned in Clauses (i) to (iv) of Sub- Rule (1) of Rule 3. The post of the Accountant however does not find place in Rule 3(1). Rule 3(2) further stipulates that each category of posts as mentioned in Sub-Rule (1) shall form an independent cadre and the members of the lower cadre shall have no claim for appointment to any of the higher cadres except in accordance with the provisions made in the Chief Judicial Magistrates Rules. Similar to Rule 5 of the District and Sessions Page No.# 25/33

Judges Rules, Rule 5 of the Chief Judicial Magistrates Rules also stipulates that the number of posts, permanent as well as temporary under each of the categories mentioned in Sub-Rule (1) of Rule 3 shall be such as may be determined by the Government from time to time. The concept of equivalence amongst posts finds no place in the Chief Judicial Magistrates Rules.

38. Rule 6 of the Chief Judicial Magistrate Rules deals with Recruitment. The opening words of Rule 6 and Sub-Rule (1) of Rule 6 being relevant are reproduced herein under:

"6. Recruitment to the service shall be made by the Appointing Authority according to the procedure laid down below -

(1) Head Assistant - By selection from amongst the Upper Division Assistants with at least 10 (ten) years of service as such to their credit including Supervisory Assistants in any Chief Judicial Magistrates Establishment (Ministerial).

NOTE - Vacancies to the posts of Head Assistant shall be advertised by the Chief Judicial Magistrate concerned inviting applications from suitable persons fulfilling the requirements of the posts. On receipt of the applications, the Selection Board consisting of the Chief Judicial Magistrate of the District concerned shall assess the comparative merit and ability of the candidates for the purpose of recommending the names of suitable candidates to the District & Sessions Judge concerned. Thereafter, the Chief Judicial Magistrate shall forward the recommendation of the Selection Board together with the character rolls and other relevant papers concerning the applications to the District & Sessions Judge concerned who shall make the selection strictly on merit and make the appointment. The select list shall remain valid for one year from the date of recommendation of the Selection Page No.# 26/33

Board."

39. From a perusal of the above quoted Rule, it would be seen that for the purpose appointment to the post of Head Assistant, the same shall be done by way of selection from amongst the Upper Division Assistants with at least 10 (ten) years of service as such to their credit including Supervisory Assistants in any Chief Judicial Magistrates Establishment (Ministerial). It is therefore made clear by Rule 6(1) that for the purpose of selection to the post of Head Assistant, the feeder category would be the Upper Division Assistants having at least 10 years of service as such to their credit and would also include Supervisory Assistants in any Chief Judicial Magistrates Establishment (Ministerial). It is also seen from the note appended to Rule 6(1) that the vacancies of the posts of Head Assistant has to be advertised by the Chief Judicial Magistrate concerned and the Selection Board consisting of the Chief Judicial Magistrate of the District shall assess the comparative merit and ability of the candidates for the purpose of recommending the names of suitable candidates to the District and Sessions Judge concerned. It is further seen that pursuant to the recommendation forwarded by the Chief Judicial Magistrate to the District and Sessions Judge concerned who shall thereupon make the selection strictly on merit and thereupon appoint the person.

40. In the backdrop of the above analysis of both District and Sessions Judges Rules as well as the Chief Judicial Magistrates Rules, it would be seen that the post of the Accountant does not come within the categories as mentioned in Rule 3(1) of both the Rules. Under such circumstances, it is Page No.# 27/33

therefore the opinion of this Court that unless and until the post of the Accountant is not brought within the ambit of Rule 3(1) of both the District and Sessions Judges Rules as well as the Chief Judicial Magistrates Rules, it cannot be said that the post of the Accountant would come within the ambit of "Service" as defined in Rule 2(10) of the District and Sessions Judges Rules and Rule 2(9) of the Chief Judicial Magistrates Rules. The natural corollary therefore would be that the post of the Accountant cannot be regulated in terms with both the District and Sessions Judges Rules as well as the Chief Judicial Magistrates Rules. It would also be seen that the concept of equivalence of posts is foreign to both the District and Sessions Judges Rules as well as the Chief Judicial Magistrates Rules.

41. It is also noteworthy to mention that the State of Assam have not caused any amendment to both the District and Sessions Judges Rules as well as the Chief Judicial Magistrates Rules to en-cadre the post of Accountant or have issued any notification to that effect of en-cadering the post of Accountant to bring the post of Accountant within the ambit of "Service" in both the District and Sessions Judges Establishment as well as the Chief Judicial Magistrates Establishment.

42. The equivalence in the scale of pay amongst the Accountant, Upper Division Assistant, Nazir, Record Keeper would not render the post of Accountant a feeder post to the post of Head Assistant, unless the applicable Rules permit so.

43. This Court further is of the opinion that the Establishment of the Page No.# 28/33

District and Sessions Judge as well as the Establishment of Chief Judicial Magistrate having permitted the persons appointed as Accountant to discharge similar duties as that of Upper Division Assistant would not make the post of Accountant a feeder category post to the post of the Head Assistant, unless the applicable Rules permit so.

44. In the backdrop of the above, let this Court now come back to the facts involved in both the writ petitions.

45. The petitioner in WP(C) No.7112/2023 was appointed Lower Division Assistant on 16.07.1997 and joined on 17.07.1997 whereas the Respondent No.5 joined to the post of Copyist on 08.06.1987. The Respondent No.5 was appointed to the post of Upper Division Assistant on 03.07.2018 whereas the Petitioner was appointed to the post of Accountant on 17.03.2012. The post of the Accountant having not been brought within the "Service" as defined in Rule 2(9) of the Chief Judicial Magistrates Rules, the question of the petitioner being considered for the post of Head Assistant does not arise. Under such circumstances, the selection of the Respondent No.5 as the Head Assistant on the ground that the Petitioner is not eligible cannot be said to be illegal or arbitrary.

46. Be that as it may, it is very pertinent to observe that in terms with Rule 2(1) as well as the note appended to Rule 6(1), the Appointing Authority is the District and Sessions Judge for the post of Head Assistant. Though the records reveal that the District and Sessions Judge, Udalguri had duly approved the selection for appointment of the Respondent No.5 as the Head Page No.# 29/33

Assistant in the Establishment of the Chief Judicial Magistrate but the appointment order was passed by the Chief Judicial Magistrate which appears to be irregular and as such, the same needs to be ratified by the District and Sessions Judge, Udalguri by issuance of a fresh appointment order.

47. Now let this Court deal with the second writ petition i.e. WP(C) No.662/2025. The record reveals that the Respondent No.7 was initially appointed as LDA-cum-Typist on 07.03.2014 and he joined the service on 13.03.2014 in the post of LDA-cum-Typist. The Respondent No.7 thereupon was promoted to the post of Accountant on 24.01.2020. Though it is the contention of the Respondent No.7 that the post of Accountant is equivalent to the Post of Upper Division Assistant but as the District and Sessions Judges Rules do no conceive of the concept of equivalence, the question of the Respondent No.7 being treated as an Upper Division Assistant for the purpose of promotion to the post of Head Assistant does not arise. Accordingly, the Respondent No.7 could not have been considered for promotion to the post of Head Assistant. Under such circumstances, the selection and appointment of the Respondent No.7 to the post of Head Assistant is required to be interfered with.

48. A further question arises as to whether a writ in the nature of mandamus can be issued directing the Respondent Authorities to select and appoint the Petitioner in WP(C) No.662/2025 to the post of Head Assistant (Head Administrative Officer) in pursuance to the advertisement dated 02.11.2024. This Court finds it very relevant at this stage to refer to Rule Page No.# 30/33

6(2) of the District & Sessions Judges Rules which stipulates that the post of Head Assistant would be filled up by way of selection who must have served as Supervisory Assistant or a Sheristadar of the Munsiff or a Sheristadar of any Assistant District and Sessions Judge or Upper Division Assistant continuously for three years in the District and Sessions Judges Establishment. The term "District and Sessions Judges Establishment" have been defined in Rule 2(3) to mean and include all non-gazetted ministerial staff in the office of the District and Sessions Judge, Additional District and Sessions Judge, Assistant District and Sessions Judge, Special Judge and Munsiff of the District. Therefore, in the opinion of this Court, as the Petitioner in the present proceedings did not belong to the District and Sessions Judges Establishment of Udalguri, the Petitioner could not have at all participated in the said advertisement dated 02.11.2024. The Respondent Nos. 5 and 6 could not have at all accepted the candidature of the Petitioner. Under such circumstances, the question of issuance of a writ in the nature of mandamus directing the Respondents to appoint the Petitioner to the post of Head Assistant in the District and Sessions Judges Establishment of Udalguri does not arise.

49. Accordingly, both the writ petitions stands disposed of with the following observations and directions:

WP(C) No.7112/2023:

(i) This Court does not find any infirmity and illegality in the selection and appointment of the Respondent No.5 to the post of Head Assistant in the Chief Judicial Magistrates Establishment at Udalguri. The rejection of the Page No.# 31/33

Petitioner's candidature in WP(C) No.7112/2023 on the ground that the Petitioner was not eligible to participate in the selection to the post of Head Assistant do not call for any interference.

(ii) Accordingly, WP(C) No.7112/2023 stands dismissed.

WP(C) No.662/2025:

(i) The selection and appointment of the Respondent No.7 in WP(C) No.662/2025 to the post of Head Assistant is interfered with as it is contrary to the District and Sessions Judges Rules.

(ii) The candidature of the Petitioner in WP(C) No.662/2025 ought not to have been accepted by the Respondent Nos.5 and 6 as the Petitioner did not belong to the District and Sessions Judges Establishment of Udalguri.

(iii) The writ petition being WP(C) No.662/2025 accordingly stands disposed of.

50. Before parting with the records, this Court finds it very pertinent to observe that the State of Assam had created the three posts of Accountant in the District and Sessions Judges Establishment in the Districts of Udalguri, Chirang and Baksa and further three posts of Accountant in the Chief Judicial Magistrates Establishment in the Districts of Udalguri, Chirang and Baksa. These were new categories of posts. Under such circumstances, the Respondent State in consultation with the Gauhati High Court ought to have carried out necessary amendments to both the District and Sessions Judges Page No.# 32/33

Rules as well as the Chief Judicial Magistrates Rules so that these posts could be brought within the cadre of the Assam District and Sessions Judges Establishment (Ministerial) Service as well as the Assam Chief Judicial Magistrates Establishment (Ministerial) Service.

51. At this stage, this Court finds it relevant to refer to a judgment of the Supreme Court in the case of T.N. Administrative Service Officers Association and Another Vs. Union of India and Others reported in (2000) 5 SCC 728 and

more particularly to paragraph No.29 of the said judgment which is reproduced herein under:

"29. Though prima facie we have accepted the explanation given by the Union of India still we find such posts are being continued by the States concerned even till date. We have not found any reason either in the pleadings or in the arguments addressed on behalf of the Union of India why it has not taken any steps to direct the State Government concerned to abolish these posts if not required to be encadred. Therefore, we find it necessary to direct the Union of India to consider in consultation with the State Government concerned, as required in the Cadre Rules, review the necessity of either to encadring these ex- cadre/temporary posts or not and take such other necessary steps. In this process the Central Government shall bear in mind the existence of these posts for the last so many years and if it is so satisfied and finds it necessary in the interest of justice to encadre these posts, it may do so with retrospective date so that officers promoted consequent to such encadrement would have the benefit of the seniority from such date, bearing, of course, in mind the possible conflict that may arise in fixation of inter se seniority and take appropriate decisions in this regard so as to avoid any further disharmony in the service."

52. Taking into account that the Respondent State of Assam had created Page No.# 33/33

the posts of the Accountant in consultation with the Gauhati High Court, this Court finds it expedient to direct the State of Assam to consider in consultation with the Gauhati High Court for encadering the post of Accountant within the ambit of the District and Sessions Judges Rules as well as the Chief Judicial Magistrates Rules. Further to that, this Court further directs the State of Assam to consider that as these posts of Accountant were created in the year 2007 and for the last 18 years, the said posts are being continued and therefore, if the State of Assam is satisfied and finds it necessary in the interest of justice to encadre the posts, it may do so with retrospective date so that the Officers who have been appointed to the posts of the Accountant since the date of its creation, would have the benefit of seniority.

JUDGE

Comparing Assistant